Filed: Mar. 19, 2010
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5076 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRYL HANDBERRY, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Louise W. Flanagan, Chief District Judge. (4:08-cr-00009-FL-1) Submitted: February 26, 2010 Decided: March 19, 2010 Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curia
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5076 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRYL HANDBERRY, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Louise W. Flanagan, Chief District Judge. (4:08-cr-00009-FL-1) Submitted: February 26, 2010 Decided: March 19, 2010 Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5076
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRYL HANDBERRY,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
Chief District Judge. (4:08-cr-00009-FL-1)
Submitted: February 26, 2010 Decided: March 19, 2010
Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darryl Handberry pled guilty to making false
statements, in violation of 18 U.S.C. § 924(a)(1)(A) (2006), and
possession and receipt of an unregistered firearm, in violation
of 26 U.S.C. §§ 5841, 5861(d), and 5871 (2006), while reserving
the right to appeal the denial of his motion to suppress
evidence seized from his residence. On appeal, Handberry argues
that the district court erred in denying his motion to suppress
and also contends that the district court clearly erred in
imposing a four-level enhancement for use and possession of a
weapon during another felony under U.S. Sentencing Guidelines
Manual (“USSG”) § 2K2.1(b)(6) (2007) of the Sentencing
Guidelines. For the following reasons, we affirm.
I.
In spring 2007, the Beaufort County Sheriff’s
Department was contacted by a cooperating witness (“CW”), who
informed the Department that he was able to buy cocaine and
marijuana from a black male known as “D.” On March 27, CW
contacted “D,” who was later identified as David Pierre, and
agreed to purchase cocaine from him at the Clifton Park
Apartments. Later that day, CW purchased marijuana and cocaine
from Pierre and another, unidentified black male driving a green
Jeep. Two days later, CW again contacted Pierre and ordered an
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“eight ball” of powder cocaine; Pierre told CW to meet him on
Bonner Street near 11th Street, and the transaction occurred
without incident. Next, on April 2, 2007, CW ordered half of an
ounce of powder cocaine from Pierre, who again instructed CW to
meet him on Bonner Street near 11th Street.
Finally, on April 9, CW called Pierre around 4:30 p.m.
to order three-quarters of an ounce of powder cocaine. Pierre
instructed CW to meet him at the Clifton Park Apartments. By
this time, the Sheriff’s Department was operating surveillance
at 1124 Bonner Street, where they believed Pierre was residing.
On that day, deputies witnessed Pierre exit the residence and
enter a car driven by a white female, identified later as Megan
Midyette. Pierre arrived at the Clifton Park Apartments at 5:05
p.m. and completed the transaction with CW, at which point both
Pierre and Midyette were detained by deputies. Pierre was
arrested and charged with several drug offenses, and Midyette
was transported back to the Sheriff’s Department after she
offered to cooperate with the investigators. At the Department,
Midyette told one of the arresting officers that she was at 1124
Bonner Street to purchase marijuana from Pierre and did not know
that Pierre was selling cocaine.
While Midyette and Pierre were in transit, other
deputies, led by Lieutenant Russell Davenport, returned to 1124
Bonner Street, arriving there at 5:10 p.m. When Davenport
3
approached the house, he heard loud music and knocked on the
door without announcing his identity. Receiving no response,
Davenport turned an unlocked doorknob and entered the house.
Upon entering, Davenport noticed a strong smell of marijuana.
Davenport and the other deputies moved into the house, guns
raised, and shouted that any individuals in the home should lie
down on the floor. The deputies detained two residents, Darryl
Handberry, the home’s owner, and another individual, Randall
Dentley. When deputies pulled Handberry up to handcuff him,
they discovered he was lying on a Hi-Point pistol. Once inside
the home, deputies also viewed cocaine and marijuana lying on a
table in plain view. The deputies performed a sweep of the
house to ensure there were no other occupants, and placed
Handberry and Dentley in patrol cars.
While deputies remained at the house, Lt. Davenport
returned to the Sheriff’s Department to apply for a search
warrant for the house. The search warrant affidavit described
the surveillance of 1124 Bonner Street and identified it as the
residence of Pierre, and noted the presence of the green Jeep
used in one of CW’s buys. The affidavit also stated that
deputies watched Pierre leave the residence that day with Megan
Midyette to travel to Clifton Park Apartments to complete a drug
transaction with CW. The affidavit referenced Midyette’s post-
detention statement that she went to 1124 Bonner Street to
4
purchase marijuana but that Pierre first asked her to drive him
to the Clifton Park Apartments. Finally, the affidavit
described the deputies’ securing of the residence under “exigent
circumstances.” The affidavit stated that while securing the
premises Davenport witnessed cocaine, marijuana, digital scales,
and a Hi-Point pistol in plain view in the living room.
The search warrant was approved at 7:00 p.m. and was
executed by Investigator Boyd. The search eventually produced
several items of evidentiary value, including a sawed-off
shotgun hidden under the couch and several handguns. During the
search, Handberry motioned Investigator Boyd over to the patrol
car where he was being detained and asked what was happening.
Investigator Boyd informed Handberry that the deputies were
trying to ascertain what the guns were doing in the house, and
Handberry replied that he purchased the shotgun for protection
“off the street” and that the handguns recovered from the house
were not his. At the time of this conversation, Handberry had
not been read his Miranda * rights.
Based upon these events, a federal grand jury sitting
in the Eastern District of North Carolina returned an eight-
count indictment against Handberry and Pierre. The indictment
charged Handberry and Pierre with conspiracy to make false
*
Miranda v. Arizona, 384 U.S. 436 (1966).
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statements in connection with a firearms transaction, in
violation of 18 U.S.C. § 371 (2006) (Count One), and making
false statements, in violation of 18 U.S.C. § 924(a)(1)(A)
(Count Two), and charged Handberry with possession and receipt
of an unregistered firearm—the sawed-off shotgun recovered from
the search—in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871
(Count Three). The five remaining charges referred only to
Pierre.
Handberry filed a motion to suppress the evidence
seized from his home, contesting the warrantless nature of the
initial search. During the suppression hearing, Lt. Davenport
testified that it was a common practice for drug dealers in high
crime neighborhoods to communicate with each other regarding
recent drug arrests in the area. Davenport testified that as a
result, the target of a search is often able to destroy or move
evidence before a search warrant is obtained. Davenport
explained that the arrests of Midyette and Pierre occurred in
the parking lot of an apartment complex roughly one-half mile
from 1124 Bonner Street, and for that reason, the deputies
secured the house before obtaining a search warrant. Davenport
also testified that he witnessed another individual under
investigation for drug dealing in the parking lot at the time
Midyette and Pierre were arrested.
6
Following this hearing, a magistrate judge issued a
written Memorandum recommending denial of the motion. Handberry
filed an objection to the magistrate judge’s report, but the
district court denied the motion to suppress. Thereafter,
pursuant to a written plea agreement, Handberry pled guilty to
Count Two and Count Three, conditioned on his right to appeal
the denial of his motion to suppress the evidence. The district
court sentenced Handberry to forty-six months imprisonment and
three years of supervised release and Handberry noted a timely
appeal.
II.
On appeal, Handberry raises three issues: (1) whether
the district court erred in denying his motion to suppress the
firearms discovered during the search at 1124 Bonner Street; (2)
whether the district court erred in denying his motion to
suppress the statements given to Investigator Boyd; and (3)
whether the district court clearly erred in adding a four-point
enhancement for use and possession of a weapon during another
felony under USSG § 2K2.1(b)(6) in sentencing Handberry.
A.
Handberry first argues that the district court erred
in denying his motion to suppress. In addressing the denial of
such a motion, we review the district court’s findings of
7
historical fact for clear error, giving “due weight to
inferences drawn from those facts by resident judges and local
law enforcement officers,” and review de novo the ultimate legal
conclusion. Ornelas v. United States, 517 U.S. 690, 699 (1996).
And, “[b]ecause the district court denied the motion to
suppress, we construe the evidence in the light most favorable
to the Government.” United States v. Perkins,
363 F.3d 317, 320
(4th Cir. 2004).
In denying Handberry’s motion to suppress the firearms
seized from 1124 Bonner Street, the district court found that
the deputies possessed probable cause to search the residence
and that exigent circumstances excused their failure to obtain a
warrant prior to entry. In the alternative, the district court
found that the independent source doctrine applied because “a
sufficient amount of genuinely independent evidence . . .
supported the [search warrant] affidavit.” Because we agree
with the district court that the independent source doctrine
applies, we need not address whether exigent circumstances
permitted the warrantless entry.
Under the Fourth Amendment, “even when officers have
probable cause to believe that contraband is present in a home,
a warrantless search of the home is unlawful unless exigent
circumstances exist at the time of entry.” United States v.
Mowatt, 513 F.3d 395, 399 (4th Cir. 2008).
8
In Murray v. United States, the Supreme Court
recognized that “a later, lawful seizure is genuinely
independent of an earlier, tainted one”—and the independent
source doctrine applies—unless “the agents’ decision to seek the
warrant was prompted by what they had seen during the initial
entry, or if information obtained during that entry was
presented to the Magistrate and affected his decision to issue
the warrant.” 487 U.S. 533, 542 (1988) (footnote omitted). The
Murray Court specifically applied the independent source
doctrine to a case in which execution of a search warrant was
preceded by an illegal search of the same premises. In such
cases, the Court held, the evidence recovered in the later
search is not admissible unless the government establishes that
“no information gained from the illegal [search] affected either
the law enforcement officers’ decision to seek a warrant or the
magistrate’s decision to grant it.”
Id. at 540; see United
States v. Dessesaure,
429 F.3d 359, 369 (1st Cir. 2005)
(similar); United States v. Herrold,
962 F.2d 1131, 1140 (3d
Cir. 1992) (similar).
In this case, the magistrate judge and district court
both concluded that, even assuming the original warrantless
search was improper, the independent source doctrine applied
because a “sufficient amount of genuinely independent evidence”
supported the search warrant affidavit. On appeal, Handberry
9
argues that, absent the information gleaned from the original
search—i.e., the marijuana, cocaine, digital scale and Hi-Point
pistol—there was insufficient evidence to support a finding of
probable cause.
The determination of whether probable cause exists
depends on the totality of the circumstances and involves a
“practical, common-sense decision whether . . . there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238
(1983). Because “probable cause is a fluid concept—turning on
the assessment of probabilities in particular factual contexts—
not readily, or even usefully, reduced to a neat set of legal
rules,”
id. at 232 we “give due weight to inferences drawn from
[the] facts by . . . local law enforcement officers,”
Ornelas,
517 U.S. at 699; see also United States v. Dickey-Bey,
393 F.3d
449, 453 (4th Cir. 2004) (“Under this pragmatic, common sense
approach, we defer to the expertise and experience of law
enforcement officers at the scene.”). “[T]he crucial element is
not whether the target of the search is suspected of a crime,
but whether it is reasonable to believe that the items to be
seized will be found in the place to be searched.” United
States v. Lalor,
996 F.2d 1578, 1582 (4th Cir. 1993).
On balance, we agree with the district court that
sufficient independent evidence supported the search warrant
10
affidavit. The Sheriff’s Department had identified 1124 Bonner
Street as Pierre’s residence and had engaged in three undercover
cocaine purchases from Pierre. The green Jeep used to transport
Pierre to one of the purchases was located at the residence. On
the day in question, Pierre left the residence and drove
directly to the Clifton Park apartments, where he completed the
sale of cocaine to CW, suggesting that his cocaine supply was
located at 1124 Bonner Street. In addition, Midyette told
Investigator Boyd that she went to the residence to purchase
marijuana. These facts, all of which were obtained independent
of the initial entry and search, support a finding of probable
cause.
In addition, ample evidence suggests that the original
search did not play a role in Lt. Davenport’s decision to seek a
warrant. Davenport testified that he believed the 1124 Bonner
Street residence needed to be secured because of his concern
that another drug dealer would notify the residents of Pierre’s
arrest. The original search reflected that understanding, as
Davenport and the deputies detained Handberry and the other
resident, swept the remainder of the house for individuals, and
then exited. Other than spotting the items in plain view, no
search for contraband occurred. Indeed, the sawed-off shotgun
was found during the execution of the warrant and not during the
initial search. The scope of this initial search supports the
11
inference that Lt. Davenport would have applied for the search
warrant absent the evidence found in plain view. Therefore, the
district court did not err in denying the motion to suppress.
B.
Handberry next argues that the district court erred in
admitting his statement to Investigator Boyd that he purchased
the sawed-off shotgun recovered from the residence. The
Government argues that Handberry may not challenge this ruling
on appeal by virtue of his conditional guilty plea.
“A voluntary and intelligent plea of guilty is an
admission of all the elements of a formal criminal charge, and
constitutes an admission of all material facts alleged in the
charge.” United States v. Willis, 992 F.2d 489, 490 (4th Cir.
1993) (internal quotation marks and citations omitted). “When a
defendant pleads guilty, he waives all nonjurisdictional defects
in the proceedings conducted prior to entry of the plea.”
United States v. Bundy,
392 F.3d 641, 644 (4th Cir. 2004).
Thus, “when the judgment of conviction upon a guilty plea has
become final and the offender seeks to reopen the proceeding,
the inquiry is ordinarily confined to whether the underlying
plea was both counseled and voluntary.”
Id.
Based upon these considerations, “direct review of an
adverse ruling on a pretrial motion is available only if the
defendant expressly preserves that right by entering a
12
conditional guilty plea” pursuant to Rule 11(a)(2). United
States v. Wiggins, 905 F.2d 51, 52 (4th Cir. 1990). “This
approach comports with the general rule that conditions to a
plea are not to be implied.”
Bundy, 392 F.3d at 645 (internal
quotation marks omitted).
Handberry unconditionally pled guilty to Count Two and
conditionally pled guilty to Count Three. The written plea
agreement contains the following language:
The parties agree:
a. Pursuant to the defendant’s conditional plea of
guilty to [] Count Three of the Indictment herein and
pursuant to Fed. R. Crim. P. 11(a)(2), that the
defendant reserves the right to appeal from the
portion of the Court’s adverse decision on Defendant’s
Motion to Suppress Evidence, filed July 7, 2008,
denying the defendant’s motion to suppress the sawed-
off shotgun obtained during the April 9, 2007, search
of the defendant’s residence.
(J.A. at 206).
During the Rule 11 colloquy, Handberry stated that he
understood the conditional guilty plea he was entering, and the
plea agreement specifically conditions the plea to Count Three
on Handberry’s right to appeal only “from the portion of the
Court’s adverse decision . . . denying the defendant’s motion to
suppress the sawed-off shotgun.” Nothing during the Rule 11
colloquy suggests that Handberry understood the provision
differently or believed that he would be able to appeal the
admission of his statement. Accordingly, we agree with the
13
Government that Handberry failed to preserve this issue for
appeal.
C.
Finally, Handberry challenges the four-level
enhancement for use and possession of a weapon during another
felony under USSG § 2K2.1(b)(6). The district court added this
enhancement after accepting the probation officer’s finding that
Handberry permitted Pierre to use one of the handguns during his
drug trafficking operation. On appeal, Handberry challenges
this finding while the Government contends that the appeal
waiver contained in the plea agreement bars consideration of the
issue.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Blick, 408
F.3d 162, 169 (4th Cir. 2005). Generally, if the district court
fully questions a defendant regarding the waiver of his right to
appeal during the Rule 11 colloquy, the waiver is both valid and
enforceable. See United States v. Johnson,
410 F.3d 137, 151
(4th Cir. 2005); United States v. Wessells,
936 F.2d 165, 167-68
(4th Cir. 1991). Whether a defendant validly waived his right
to appeal is a question of law that this court reviews de novo.
Blick, 408 F.3d at 168. An appeal waiver does not, however, bar
the appeal of a sentence imposed in excess of the statutory
maximum or a challenge to the validity of a guilty plea. United
14
States v. General, 278 F.3d 389, 399 n.4 (4th Cir. 2002); United
States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992).
The plea agreement contained the following appellate
waiver:
The Defendant agrees:
c. To waive knowingly and expressly all rights,
conferred by 18 U.S.C. § 3742, to appeal whatever
sentence is imposed, including any issues that relate
to the establishment of the advisory Guideline range,
reserving only the right to appeal from a sentence in
excess of the applicable advisory Guideline range that
is established at sentencing, and further to waive all
right to contest the conviction or sentence in any
post-conviction proceeding . . . excepting an appeal
or motion based upon grounds of ineffective assistance
of counsel or prosecutorial misconduct not known to
the Defendant at the time of the Defendant’s guilty
plea.
(J.A. at 204).
During the Rule 11 colloquy, the magistrate judge
specifically referenced the appeal waiver with Handberry,
ensuring that he understood its ramifications. Handberry
stated, under oath, that he understood the appeal waiver, and
there is no suggestion that he was under the influence of drugs
or alcohol at the time of the Rule 11 colloquy. In addition,
Handberry had three years of college education, and his attorney
indicated that he had no difficulty communicating with him.
On appeal, Handberry does not contest any of these
facts, and, accordingly, we agree with the Government that this
issue, which relates to Handberry’s guideline sentence and does
15
not involve any of the exceptions discussed in General or Marin,
is clearly covered by the appellate waiver.
III.
For the foregoing reasons, we affirm Handberry’s
conviction and sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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